FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 29, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-11756

Non-Argument Calendar

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D. C. Docket No. 03-00723-CV-P-NE

MARY CATHERINE GRAHAM,

Plaintiff-Appellant,

versus

ALBERTO GONZALEZ, in his official

capacity as Attorney General, U.S. 

Department of Justice,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(November 29, 2005)

Before HULL, WILSON and COX, Circuit Judges.

PER CURIAM:
In the district court, Graham asserted a sexual harrassment hostile working environment 1

claim. On appeal, however, she does not contend that the district court erred in granting

summary judgment on that claim.

Although Graham claims that this case is a “direct evidence” case, she provides no direct

2

evidence of discriminatory intent on the part of the FBI. See Early v. Champion Int’l Corp., 907

F.2d 1077, 1081 (11 Cir. 1990) (holding that direct evidence requires neither inference nor th

presumption to establish the ultimate fact at issue).

2

The Plaintiff, Mary Catherine Graham, appeals following the district court’s

grant of summary judgment in favor of Alberto Gonzales in his official capacity as

Attorney General and head of the Federal Bureau of Investigation (the “FBI”).

Graham contends that the district court erred in awarding summary judgment to the

FBI on her claims of gender discrimination and retaliation based on Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Because she has 1

not carried her burden on either claim, we affirm.

We review the district court’s grant of summary judgment de novo. Killinger

v. Samford Univ., 113 F. 3d 196, 198 (11 Cir. 1997). This court will affirm the th

district court if, construing the evidence in the light most favorable to the non-moving

party, no genuine issue of material fact exists, and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c)); William Penn Life Ins.Co. v. Sands, 912

F.2d 1359, 1361 (11 Cir. 1990). In cases such as this one, where the plaintiff seeks

th

to prove disparate treatment motivated by prohibited discrimination, Title VII

requires the plaintiff to establish a prima facie case in the absence of direct evidence.2
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To establish a prima facie case in response to a motion for summary judgment

in a disparate treatment case under Title VII, the plaintiff must bring forth evidence

that (1) she is a member of a protected class; (2) she suffered an adverse employment

action; (3) the employer treated similarly situated employees who were not members

of her protected class differently; and (4) she was sufficiently qualified that the

employment action should not have been adverse. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973); Holifield v. Reno, 115 F.3d

1555, 1562 (11 Cir. 1997); Coutu v. Martin Cty. Bd. Of Cty. Comm’rs, 47 F.3d 1068, th

1073 (11 Cir. 1995). The district court assumed without deciding that Graham had th

established a prima facie case in accordance with the McDonnell Douglas standard.

We do the same.

Once the prima facie case has been established, the burden of production–but

not persuasion–shifts to the defendant to put forth a legitimate, nondiscriminatory

reason for the adverse employment action. Reeves v. Sanderson Plumbing Prod.,

Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000). In this case, the FBI claims

that it refused to promote Graham because of her poor judgment in the workplace,

and that several statements by coworkers interviewed during the two background

investigations led it to this conclusion. Graham does not dispute that these statements
4

were made. Rather, she argues that they were inaccurate and motivated by gender

animus, and thus should not have been considered.

Graham misunderstands the standard by which the FBI’s actions are evaluated.

In contrast to what Graham appears to believe, the court does not concern itself with

whether the FBI was correct in making its decision. Instead, the court concerns itself

only with whether that decision was a legal one. Nix v. WLCY Radio/Rahall

Commun., 738 F.2d 1181, 1187 (11 Cir. 1984). In the same vein, the court does not th

consider the accuracy of the information before the FBI when we evaluate its

employment decision; we consider only whether the FBI relied on this information

in making its decision. See Elrod v. Sears, Roebuck, & Co., 939 F.2d 1466, 1470

(11 Cir. 1991) (citation omitted). 

th

The FBI’s burden in establishing that it had a legitimate, nondiscriminatory

reason for making its decision is “exceedingly light.” Meeks v. Computer Assoc.

Int’l, 15 F.3d 1013, 1019 (11 Cir. 1994). The FBI need only establish that clear and th

reasonably specific facts motivated its decision. Chapman v. Ala. Trans., 229 F.3d

1012, 1034-35 (11 Cir. 2000). The district court’s memorandum opinion lays out th

in sufficient detail the facts upon which the FBI based its assessment of Graham as

an employee with poor professional judgment, and we will not repeat them here.

(R.4-92 at 21-26.) These stated facts and the resulting conclusions of the FBI are
5

sufficient to meet the Meeks standard. That Graham disputes the accuracy of these

statements and the motivations of those who made them does not create a factual

issue as to whether the FBI actually relied on them. Thus, the FBI has met its light

burden to put forth a legitimate, nondiscriminatory basis for its decision.

Once an employer has established that its decision had a reasonable,

nondiscriminatory basis, the burden returns to the plaintiff, who must now establish

through “significant probative evidence” that discriminatory intent nevertheless

motivated the decision maker, and that the stated reason was merely a pretext used

to disguise this intent. Elrod, 939 F.2d at 1470. We agree with the district court’s

determination that there was no “significant probative evidence of pretext.” Thus,

Graham failed to meet her burden, and summary judgment was appropriate on her

gender discrimination claim.

As to her claim of retaliation, Graham also must establish a prima facie case.

To do so, Graham must establish that (1) she engaged in statutorily protected

expression; (2) she suffered an adverse employment action; and (3) the protected

expression and the adverse employment action are causally linked. Raney v. Vision

Guard Serv., Inc., 120 F.3d 1192, 1196-97 (11 Cir. 1997). Graham claims that the th

ultimate withdrawal of her conditional employment offer was in retaliation for her
Graham also claims that other events constituted retaliation, such as the timing of the 3

investigation, the selection of the same person to perform both of her background investigations,

and the failure to provide her with an opportunity to respond to the statements made about her. 

Each of these contentions is without merit, as each of the cited “actions” was merely an

investigation protocol used at the FBI. None could be considered adverse employment actions

any more than the establishment of 12:00 to 1:00 as the investigator’s lunch hour.

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filing an EEO complaint after the first such withdrawal. However, Graham fails to

3

establish any causal link between the ultimate withdrawal of her conditional

employment offer and her filing of an EEO complaint. After Graham filed her EEO

complaint, the FBI made the same decision for substantially the same reason as it had

made before she filed the complaint. It is difficult to imagine how the EEO complaint

had any appreciable effect on the second decision if that decision was identical to the

first one. See Erenberg v. Methodist Hosp., 357 F.3d 787, 793 (8 Cir. 2004). th

Moreover, the ultimate denial of her employment offer came more than eight months

after her EEO filing. The Supreme Court has recognized that, even assuming that

temporal proximity suffices to show causation, such events must come closer to each

other in time than that to be causally linked. Clark Cty. Sch. Dist. v. Breeden, 532

U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001) (citing with approval circuit court cases

invalidating temporal proximities of three and four months). Thus, because Graham

has put forth no evidence of causation, her retaliation claim fails.
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Graham additionally contends that the district court erred in awarding summary

judgment after engaging in credibility determinations and “ignoring plaintiff’s

evidence.” We find these contentions meritless.

AFFIRMED.